Drug ruling not likely to free many

Few crack cocaine prisoners eligible for reduced sentence

WASHINGTON — When the U.S. Sentencing Commission last week reduced sentences for imprisoned crack cocaine offenders -- reversing years of policy that treated crack far differently from powder cocaine -- the Justice Department and police groups bitterly criticized the action, warning of a flood of criminals rushing out onto America's streets.

The change "will make thousands of dangerous prisoners, many of them violent gang members, eligible for immediate release," said acting Deputy Atty. Gen. Craig Morford. "These offenders are among the most serious and violent offenders in the federal system."

But many experts say the reality is not so dramatic. Fewer than 3,000 prisoners nationwide will be immediately eligible for the relief. All have already served considerable time. Each eligible prisoner will have to petition the court for freedom -- and the Justice Department can oppose those petitions. Few offenders with violent histories are likely to be released.

Ruben Castillo, a federal judge in Chicago who sits on the commission that voted unanimously to apply the new crack sentences retroactively, finds the rhetoric overheated.

"If you listen to the hyperbole out there, you would think the doors are swinging open and individuals armed with submachine guns would be leaving," Castillo said. A former prosecutor and a veteran of Chicago's crack epidemic of the 1980s and 1990s, Castillo said, "I'd be the last person in the world to open a jail-cell door for a serious violent criminal."

Growing recognition

The tide had been moving in the direction of reducing crack penalties for some time, as recognition grew that the distinction between crack and powder cocaine did not hold up to strict scrutiny. Adding to the complaints, those sentenced for crack offenses compared to powder are disproportionately African-American.

What surprised some was the unanimity of the panel, which features several of President Bush's appointees. The other surprise was that the decision is retroactive, so the change would apply to more than 19,000 federal prisoners nationwide.

That bothered Atty. Gen. Michael Mukasey, who condemned the proposal before the vote. The old cases, Mukasey said, were "handled on the assumption that there was a certain regime in place for sentencing. Whether you agree with it or not, it was there. And the cases were planned around that assumption."

Clinton, Obama split

The issue has split the Democratic presidential candidates. Sen. Hillary Clinton of New York has come out against retroactivity, while Sen. Barack Obama of Illinois supports it. In a speech in September, Obama said, "Let's not make the punishment for crack cocaine that much more severe than the punishment for powder cocaine when the real difference between the two is the skin color of the people using them."

Others said the commission issued a precise formula for which prisoners could be released, designed to ensure that few violent or hardened criminals would be eligible. "What this changes is modest," said Kara Gotsch, director of advocacy for the Sentencing Project, a non-profit group that supports reduced crack penalties. "These are low-level offenders, people at the bottom of the drug market."

In specific cities, the impact is likely to be even more modest. Out of the 19,500 prisoners eligible for release over the next few years, 377 of them, or 1.9 percent, are in the Northern District of Illinois.

Castillo, who helped build large-scale drug prosecutions in the Chicago U.S. attorney's office in the 1980s, says the commission's vote is recognition that the current strategy in the government's long-running war on drugs is flawed. Twenty years ago, Castillo said, "we were going after the right defendants." Now, he complains that his docket overflows with low-level street dealers.

"These people are very fungible," he said. "They're replaced the very next day by someone else with no criminal background. ... We're not making a dent."

But the Drug Enforcement Administration says it has seriously disrupted the supply of cocaine from Central and South America, causing the drug's street price to spike. The DEA also seized a record 118,311 kilograms of cocaine in 2005, despite having fewer resources after the Sept. 11 attacks.

In the wake of the commission's vote, groups like the Fraternal Order of Police are sounding the alarm. "These people weren't just low-level mules," said Jim Pasco, executive director of the national organization. "They were dealers. They were distributors."

The tough-on-crack sentencing policies played a key role in reducing crime in the 1990s, he said. "I don't think it's any coincidence that when these 20,000 individuals were incarcerated, the crime rate went downward," Pasco said.

The prisoners' opportunity to petition for release -- and the Justice Department's chance to oppose it -- will come after the commission's amendment takes effect in March. The average inmate's sentence could be lowered by 27 months.